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The ‘Independent’ Counsel Mirage [Don’t hand the IRS investigation over to a special prosecutor]
National Review ^ | 7/12/2014 | Andrew C. McCarthy

Posted on 07/12/2014 5:03:58 AM PDT by markomalley

I confess to being amazed that President Obama and his trusty attorney general, Eric Holder, have not mollified their detractors by appointing an “independent counsel” to investigate the IRS scandal.

“Why,” you ask, “would Obama sic a prosecutor with independence from Holder’s Justice Department on a component of the Obama administration?” The real question is: Why hasn’t he?

The disconnect here lies in the public’s perception — and, perhaps, the perception of some congressional Republicans who ought to know better — of what an “independent counsel” really is. Independence is a mirage: Obama’s critics crave an evenhanded investigation of executive lawlessness and, in the Washington fashion, they have convinced themselves that wishing can make it so. As it actually exists, however, an “independent counsel” would be tailor-made for letting the administration and the IRS dodge accountability.

Let’s talk reality. As a matter of constitutional law, there is no such thing as an independent counsel. In our system, prosecution is a plenary executive power. All federal investigations and prosecutions proceed under the authority of the president; neither the Congress nor the courts have police powers. Any prosecutor, regardless of how “independent” we’d like him to be, would have to serve at the pleasure of the president, and would report to Eric Holder.

Is the constitutional bar to true prosecutorial independence a fatal blow to the goal of structuring a legitimate investigation of executive-branch misconduct? Not necessarily. For a scrupulous administration, careful political steps could address this legal conundrum.

Let’s say you had a president and attorney general who were regarded by even the opposition party as trustworthy. They could appoint a lawyer widely respected by both major parties as a pillar of rectitude and competence. Such an attorney’s reputation might convince the public to overlook the technicality that the lawyer would answer to the AG and, ultimately, to the president. But the attorney’s reputation on its own wouldn’t suffice. This “independent” counsel’s appointment would have to be accompanied by the president’s own very convincing demonstration that he regarded the investigation as a serious matter and was cooperating earnestly — in particular, by directing his subordinates, on pain of termination, to answer all questions and disclose all relevant evidence.

Now, let’s consider the Obama administration. President “I’m not interested in photo ops” is notoriously cynical and slippery — indeed, flat-out dishonest at times. His attorney general has already been held in contempt of Congress, owing to his penchant for providing misinformation. The president has publicly prejudged the IRS scandal as bereft of a “smidgeon” of corruption. The attorney general — notwithstanding the ethical canon that lawyers must avoid even the appearance of impropriety in the administration of justice — assigned this abuse-of-power probe to Barbara Bosserman, a heavy Obama and Democratic-party campaign donor.

Legitimacy is mostly a matter of trust. This president and this attorney general do not have the credibility to structure an independent-counsel investigation that sensible people would accept as a search for the truth. And never forget that they have stuck with the hopelessly compromised Ms. Bosserman for months — notwithstanding intense congressional criticism, reports that key witnesses have not been interviewed, and indications that relevant evidence has been destroyed with impunity. The suggestion that they might suddenly put the case in the hands of an impartial, impeccably credentialed former prosecutor with directions to go wherever the facts lead does not pass the laugh test.

What the president does have going for him are his media courtiers. They provide crisis cover for him, a task that requires increasingly less effort with the president now overloading our attention spans with crisis after crisis — a strategy redolent of the Cloward-Piven approach beloved of trained community organizers. This could pull him through the IRS fiasco . . . if he appoints an independent counsel.

It works this way.

Obama and Holder find a reliable Democratic lawyer to appoint as “independent” counsel — there being, oh, one or two of those around. It should be the J.D. equivalent of IRS chief John Koskinen: someone who knows what team he is on but whom all the other reliable Democrats will praise as probity personified. The note-takers in the press dutifully repeat the talking points about the “independent” counsel’s gravitas. Observing which way the wind is blowing, and anxious to claim “victory” in ostensibly forcing the president’s hand, Beltway Republicans applaud the appointment.

The story writes itself: Obama and Holder demonstrate their integrity by handing the IRS investigation to a litigator highly regarded by both sides of the aisle — a lawyer with a reputation for being methodical (i.e., slow) and leaving no stone unturned (after snail’s pace deliberation). The special counsel would ceremoniously announce that staff lawyers and investigators will soon be hired, followed by a methodical analysis of the information compiled to date that will leave no stone unturned — such that a grand jury could be convened, perhaps some time early next year.

Next, the witnesses clam up and the information flow is stanched — meaning, no more IRS news. “On advice of counsel,” IRS and other executive officials twaddle, “we cannot comment publicly on this matter, which is now the subject of an active criminal investigation.” (We’re all Lois Lerner now.) Between bows, the special counsel patiently explains that this is not congressional oversight: The rules of grand-jury secrecy prevent a prosecutor from commenting publicly on the investigation or issuing progress reports (not quite true, but close enough to be swallowed whole).

The special counsel would, of course, make one special exception to the self-imposed “no comment” rule: “It really would be a shame if, after the president gave lawmakers the independent investigation they demanded, Congress interfered with that investigation by continuing to convene hearings and, potentially, tamper with witnesses.”

“Yes,” the usual Republican suspects would somberly agree, “we have to let the process work.”

Ah yes, the process. You’ll have to trust them that it works . . . on those rare occasions when you pause to think about it. But how much thinking about the IRS do you suppose you’ll be doing once Congress stands down and news about it dries up?

When was the last time you thought about Fast and Furious? About the debt ceiling (or is it the retractable debt dome)? Or how about the just-announced EPA regs? It’s only been a few weeks since they were announced, and they could crush the most vibrant sector of our otherwise rigor mortis economy. Yet news coverage barely got to them, buried as they were between the VA scandal and the commander-in-chief’s replenishing of the Taliban. You can be excused for not remembering. Sure, it’s just the blink of an eye ago, but in Obama’s America Transformed, that’s the time it takes to roll out the welcome-mat for 300,000 illegal aliens.

You can have political accountability for abuses of power or you can have an “independent” counsel and “the process.” Political accountability is driven by congressional investigations and court cases brought by citizens whose rights have been trampled. It is messy, combative, and political, but the malfeasance it uncovers can result in the removal of corrupt officials from power.

By contrast, “the process,” under the steady hand of “independent” counsels, is neat, silent, and somnolent. In fact, once it starts, that may be the last you hear about it until President Obama pardons everyone on his way out the door.

TOPICS: Constitution/Conservatism; Editorial; Government

1 posted on 07/12/2014 5:03:58 AM PDT by markomalley
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To: markomalley

Ah, yes. The ridiculous spectre of the Clinton SP going after blue dresses rather than Chinese links. A SP whose Christian moralism encouraged him to follow the girl rather than follow the money.
The only way to get at this crook is by convening the House sitting as a Grand Jury under the rubric of the articles of impeachment. There is no other way to get at any truth.
The stupid, arrogant and cowardly suit files by Boehner simply provides additional cover for the prez. Who, after all, will act as the prosecuting attorney in this trial? They are all members of the O admin.

2 posted on 07/12/2014 5:34:12 AM PDT by Louis Foxwell (This is a wake up call. Join the Sultan Knish ping list.)
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To: markomalley

Has there ever been and appointed “special prosecutor” who completed his work in a timely fashion and costing a jillion dollars??

3 posted on 07/12/2014 6:23:48 AM PDT by elpadre (AfganistaMr Obama said the goal was to "disrupt, dismantle and defeat al-hereQaeda" and its allies.)
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To: Louis Foxwell
Who, after all, will act as the prosecuting attorney in this trial? They are all members of the O admin.

Are you sure about this? Wouldn't the plaintiffs in this case (not sure who they would be to have standing) be entitled to retain any attorney they want to represent them? This lawsuit would be a civil case, not a criminal case, as I understand it.

Also I have read that Boehner is recruiting private citizen plaintiffs who can claim actual damages from the President's actions on Obamacare in order to ensure standing.

Personally, I am not very supportive of the lawsuit, but I have to admit that I was impressed by this American Thinker article that was posted on FR on July 8: Boehner's Brilliant Lawsuit.

I would much prefer impeachment if I thought for one minute that House Republicans could present what the public would see as irrefutable arguments for the grounds, and if I thought the Senate (even with a Republican majority) would have the testicular fortitude to remove the traitor Obama from office.

But alas, I am forced to agree with Ted Cruz that impeachment would not get the job done.

4 posted on 07/12/2014 6:32:53 AM PDT by Maceman
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To: Louis Foxwell

“The girl” was the only evidence of Clinton’s perjury, and that was the issue. It’s unfortunate that it came down to that, because it gave the press a chance to make the whole thing look silly.

5 posted on 07/12/2014 6:51:17 AM PDT by livius
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To: Maceman; Louis Foxwell

Having a special prosecutor is different from the lawsuits, and I’m inclined to agree that a special prosecutor, in this case, would be a waste of time, since said prosecutor would be appointed by Eric Holder. Even under Clinton, an attempt was made to get somebody whom the public and Congress perceived as disinterested, but Holder doesn’t even pretend to care about that.

As for the lawsuits, I think they’re definitely the way to go (for now) because they provide an objective, non-political way of identifying Obama’s crimes and general pattern of lawless behavior and actually can provide remedies. Of course, the important thing is to get the courts to admit them in the first place, and it sounds as if getting together multiple plaintiffs might help.

6 posted on 07/12/2014 6:56:45 AM PDT by livius
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To: livius

The SP was in over his head when faced with the daunting task of investigating Chinese ties to the Clinton admin. Perjury abounded but the whiz kid from Chi town did not know where to look. He might have saved the nation. Instead he got lost in his own cowardice.

7 posted on 07/12/2014 7:17:47 AM PDT by Louis Foxwell (This is a wake up call. Join the Sultan Knish ping list.)
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To: markomalley

8 posted on 07/12/2014 2:06:32 PM PDT by Travis McGee (
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To: Travis McGee

9 posted on 07/12/2014 7:32:49 PM PDT by 4Liberty (Our 13th Amendment abolished slavery, yet they continue forcing us to "transfer" our work products.)
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To: markomalley


10 posted on 07/13/2014 7:47:35 AM PDT by AllAmericanGirl44
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